Excerpt:pauper suit - application for leave to sue as a pauper--question to be determined--civil procedure code (act v of 1908), order xxxiii, rule 5. - .....in order to make it appear that the court-fees payable on the plaint would be much more than the property possessed by him. the petitioner's admission, when he was examined, shows that this observation is well-founded. but even deducting that amount, the property possessed by the plaintiff appears to be insufficient to cover the court-fees on the remainder of the claim. it may be, as urged by mr. krishnaswami iyer, that the petitioner has other property; but the judge has not decided that question. he would, no doubt, be entitled to reject it, if he found that the petitioner was possessed of sufficient property to enable him to pay the court-fees due on his plaint.4. it is also urged on behalf of the respondents that this court should not interfere as the petition was presented on the.....

Judgment:

Sundara Aiyar, J.

1. This is an application to revise an order of the District Judge of Coimbatore rejecting an application for leave to institute a suit as a pauper. The Judge has recorded no finding on the question of the plaintiff's pauperism, but has found that the petitioner was not entitled to sue as reversioner. This finding is based on a reported judgment of this Court in Govindayyar v. Dorasami 11 M.P 5. The judgment shows that the decision of this Court was based on grounds special to the parties in that case. It would not affect the plaintiff.

2. Apart from this circumstance, Order XXXIII, Rule 5, entitles the Court only to see whether the plaintiff's allegations do not show a cause of action. The plaintiff does not admit that the 1st defendant was the adopted son of the deceased Subbier either in his plaint or at his examination. The judgment referred to by the learned Judge was not put in evidence. If it had been, he would probably have found oat that the decision in that case could not be relied on against the petitioner. As the Judge has not found that the allegations made by the petitioner do not show a cause of action, I must hold that he was not entitled to reject the petition without inquiring into the question of the petitioner's pauperism, and that he exercised a jurisdiction not vested in him in doing so.

3. The learned Vakil for the respondents says that the petitioner deliberately included a claim for moveables which was barred in order to make it appear that the Court-fees payable on the plaint would be much more than the property possessed by him. The petitioner's admission, when he was examined, shows that this observation is well-founded. But even deducting that amount, the property possessed by the plaintiff appears to be insufficient to cover the Court-fees on the remainder of the claim. It may be, as urged by Mr. Krishnaswami Iyer, that the petitioner has other property; but the Judge has not decided that question. He would, no doubt, be entitled to reject it, if he found that the petitioner was possessed of sufficient property to enable him to pay the Court-fees due on his plaint.

4. It is also urged on behalf of the respondents that this Court should not interfere as the petition was presented on the 91st day after the order was announced deducting the time allowed or obtaining copies. Assuming that the petition was put in one day after the ninety days allowed in the case of appeals, I am not prepared to reject the petition on this ground. It cannot be said that there has been any excessive delay in the presentation of the petition.

5. In the result, I set aside the order of the lower Court and direct that the petition be restored to the file and disposed of afresh according to law. The costs of this petition will abide the result.